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The Value of Political Corruption

Americans have been pretty cynical about politics since at least Vietnam and Watergate. And key reforms that conservatives sought for decades and finally achieved have done nothing to quiet public distrust of the political class.

In fact, two of these reforms — the ban on congressional earmarks and a series of court rulings that radically deregulated campaign-finance law – have intensified the public’s hostility to both politicians and the political process.

From 2006 to 2013, the percentage of Americans convinced that corruption was “widespread throughout the government in this country” grew from 59 to 79 percent, according to Gallup. In other words, we were cynical already, but now we’re in overdrive.

Over the period from 1964 to 2012, the percentage of voters who said that government was “run by a few big interests looking out for themselves” more than doubled, from 29 to 79 percent, while the share of the electorate that believed government was run for the benefit of all the people” fell from 64 to 19 percent, according to American National Election Studies and data supplied to me by Alan Abramowitz, a political scientist at Emory.

The ban on earmarks, adopted after the Republican takeover of the House in 2010, has tied the hands of congressional leaders. Still, earmarks, despised by reformers on the left and right, served an essential political purpose. The House and Senate leadership and ranking committee members used earmarks to persuade their reluctant colleagues to vote for or against key bills; they used them as a tool to forge compromise and as a carrot to produce majorities.

The prohibition on earmarks has done nothing to restore respect for Congress. Just the opposite: It has contributed to legislative gridlock and increased the difficulty of winning enactment of tax and immigration reform.

If the goal of the earmark prohibition was to increase the favorability ratings of Congress, it has failed in this regard, too. The public perception of Congress was already deeply negative in 2010, and it has steadily worsened. Polling in June and July reported on RealClearPolitics showed disapproval of Congress averaging 77.3 percent and approval, 12.3 percent.

Meanwhile, conservative-backed, court-ordered reforms of campaign finance law – most prominently, Citizens United v. F.E.C., McCutcheon v. F.E.C. and Speechnow.org v. F.E.C. — have created a system of election financing that reinforces the public’s view that government is run for the benefit of powerful special interests.

A February 2010 Pew poll found that 68 percent of respondents disapproved of the Citizens United decision; 17 percent approved. Disapproval among Republicans stood at 65 percent, among Democrats at 76 percent and among independents at 66 percent.

Under the current court-ordered campaign-finance regime, corporations, unions and the rich can now spend more freely to influence the outcome of elections. This lopsided influence has been buttressed by a series of decisions on the part of the Federal Election Commission that allowed politically active tax-exempt organizations to keep their donors secret, even when these groups were spending money specifically to influence voter choices.

Charles Lewis, the founder of the Center for Public Integrity, succinctly described the situation to me in an email: “Our political process has increasingly become an accepted system of legal corruption.” He elaborated: “We have an electoral process today in which concepts such as the rule of law, transparency and other democratic values are fraying rather obviously.”

Covering Baltimore politics some 45 years ago, I was struck by how newly empowered ethnic groups used political power to acquire economic power, often dodging city laws and rules to benefit favored constituencies with city contracts, engineering and architectural awards, bond counsel, and so forth. These deals made headlines. But there was a degree of ambiguity to this so-called corrupt activity – it might even be called “good” corruption, which it famously was by George Washington Plunkitt, the turn of the century Tammany Hall enthusiast who coined the phrase “honest graft.” Politicians representing ascendant ethnic constituencies skirted legal and regulatory systems purposely designed by powerful entrenched interests to block emerging competitors.

It was with these thoughts in mind that I raised the question of corruption in a series of emails and phone conversations with sources who study or practice politics. They provided some interesting insights.

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Nolan McCarty, a political scientist at Princeton, took a relatively hard line: “In general, I am an enthusiast for the rule of law and think both ‘good’ and ‘bad’ corruption come with significant costs to that value.” There are, however, “difficult cases,” he acknowledged, “where political entrepreneurs use the public’s fear of corruption to push forward on unrealistic and counterproductive measures – e.g. banning earmarks, open meeting laws, etc. I really don’t think representative government will work very well if such rules are not occasionally bent and stretched.”

Bob Bauer, a leading Democratic election lawyer, pointed to the dangers inherent in the use of the word “corruption” to describe what may in fact be a routine ingredient in the competent practice of politics: “Corruption is an entirely plastic concept,” Bauer wrote, adding “rather than distinguishing between ‘good’ from ‘bad’corruption, we” should “consider the cases in which something is called ‘corrupt’ which is not truly corrupt at all.”

Taking Bauer’s argument a step further, Stan Brand, a lawyer who specializes in cases involving allegations of political corruption who was general counsel to the House of Representatives from 1976 to 1983 under the Democratic speaker Thomas P. O’Neill Jr., warned that the public’s belief in pervasive political corruption has allowed prosecutors to run amok.

In a phone interview, Brand contended that United States attorneys, in particular, have been adopting a grab bag of legal theories to justify indictments. When they found their way blocked by the courts, Brand argued, they would simply create new legal doctrines to charge politicians with crimes. “They go wherever their theories can work. They take the path of least resistance,” he said.

Charles Stewart, a political scientist at M.I.T., elevated the issue to a more abstract level, suggesting that the issue of corruption could be addressed using the “veil of ignorance” approach of the political philosopher John Rawls:

“What would we want the distribution of public goods to be, if we didn’t know what our status in life would be? We would probably start with a basic quality of life issue — I would want to have high-quality roads and schools. I would want the police to treat transgressions against me without reference to my station in life— and for the police to treat accusations against me without reference to my station in life.

“After that, behind the veil of ignorance, we might agree that it will be necessary, in forming majorities in order to govern, that the winners get access to the spoils of victory — so long as the just distribution of public goods discussed in the previous paragraph were taken care of. So, we might agree that if I’m part of an ethnic group whose party loses an election, I might not get the next park to be built. Or, assuming that everyone has access to the fruits of their entrepreneurial activity, that the government might give extra help to the winners’ supporters in throwing business their way.

“Within this framework, corruption would seem to rest in violating principles of the just distribution of basic public goods —making it so that some people don’t have a just amount, in order that some other people get more than their fair share.”

As a general rule of thumb, reformers, liberal and conservative, are often serving – wittingly or unwittingly – the interests of competing elites.

The best politicians are sensitive to the relative importance of moral considerations as they shift from the public arena to the back room, aware that ultimate judgment of what they have done will be based more on what they produce than how they produce it. Political morality in this context becomes something far less rigid and rule-bound than many in the public conceive it to be – even though, in their own lives, most people act more like politicians than they would like to think.

Effective governance is currently running head-on into growing public skepticism about the legitimacy of political maneuvering and compromise. This reflexive skepticism makes it hard to recognize that politics is a process of negotiation and concession. The perverse consequence is that the art of politics is held in contempt.

Both the court decisions regarding campaign finance and the ban on earmarks betray a certain naïveté about the reality of governing. The expectation of a government free of bribery may be legitimate – but, as I wrote when I was covering Maryland politics, the legal presumption of legislators who are “impartial, disinterested and unbiased in the routine carrying out of daily business, in the context of a system imbued with favoritism, may possibly stretch a democratic form of government beyond its credible limits.”